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member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
And it is admitted that the office held by Judge Sheffey, at the time of the trial of Griffin, was an office under the state of Virginia, and that he was one of the persons to whom the prohibition to hold office pronounced by the amendment applied.
The question to be considered, therefore, is whether, upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once and absolutely of all official authority and power.
One of the counsel for the petitioner suggested that the amendment must be construed with reference to the Act of 1867, which extends the writ of habeas corpus to a large class of cases in which the previous legislation did not allow it to be issued. And it is proper to say a few words of this suggestion here.
The Judiciary Act of 1789 expressly denied the benefit of the writ of habeas corpus to prisoners not confined under or by color of the authority of the United States. Under that act, no person confined under state authority could have the benefit of the writ. Afterwards, in 1833 and 1842, the writ was extended to certain cases, specially described, of imprisonment under state process; and, in 1867, by the act to which the counsel referred, the writ was still further extended "to all cases where any person may be restrained of liberty in violation of the Constitution, or of any treaty or law of the United States."
And the learned counsel was, doubtless, correct in maintaining that without the Act of 1867 there would be no remedy by habeas corpus in the case of the petitioner, nor, indeed, in any case of imprisonment in violation of the Constitution of the United States, except in the possible case of an imprisonment not only within the provisions of this act, but also within the provisions of some one of the previous Acts of 1789, 1833, and 1812
But if, in saying that the amendment must be construed with reference to the act, the counsel meant to affirm that the existence of the act throws any light whatever upon the construction of the amendment, the court is unable to perceive the force of his observation.
It is not pretended that imprisonment for shooting with intent to kill is unconstitutional, and it will hardly, be affirmed that the Act of 1867 throws any light whatever upon the question whether such imprisonment in any particular case is unconstitutional. The case of unconstitutional imprisonment must be established by appropriate evidence. It cannot be inferred from the existence of a remedy for such a case. And, surely, no construction, otherwise unwarranted, can be put upon the amendment more than upon any other provision of the Constitution, to make a case of violation out of acts which, otherwise, must be regarded as not only constitutional, but right.
We come then to the question of construction. What was the inten. tion of the people of the United States in adopting the fourteenth
amendment? What is the true scope and purpose of the prohibition to hold office contained in the third section ?
The proposition maintained in behalf of the petitioner, is that this prohibition, instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts performed by them since that day null and void.
One of the counsel sought to vindicate this construction of the amend. ment upon the ground that the definitions of the verb “to hold,” given by Webster in his dictionary, are “to stop; to confine; to restrain from escape; to keep fast; to retain ;' of which definitions, the author says that “to hold rarely or never signifies the first act of seizing or falling on, but the act of retaining a thing when seized on or confined."
The other counsel seemed to be embarrassed by the difficulties of this literal construction, and sought to establish a distinction between sentences in criminal cases, and judgments and decrees in civil cases. He admitted, indeed, that the latter might be valid when made by a court held by a judge within the prohibitive category of the amendment; but insisted that the sentences of the same court in criminal cases must be treated as nullities. The grouud of the distinction, if we correctly apprehend the argument, was found in the circumstance that the Act of 1867 provided a summary redress in the latter class of cases; while in the former, no summary remedy could be had, and great inconvenience would arise from regarding decrees and judgments as utterly null and without effect.
But this ground of distinction seems to the court unsubstantial. It rests upon the fallacy already commented on. The amendment makes no such distinction as is supposed. It does not deal with cases, but with persons. The prohibition is general. No person in the prohibitive category can hold office. It applies to all persons and to all offices under the United States, or any state. If upon a true construction, it operates as a removal of a judge, and avoids all sentences in criminal cases, pronounced by him after the promulgation of the amendment, it must be held to have the effect of removing all judges and all officers, and annulling all their official acts after that date.
The literal construction, therefore, is the only one upon which the order of the learned district judge, discharging the prisoner, can be sus. tained; and was indeed, as appears from his certificate, the construction upon which the order was made. He says expressly “the right of the petitioner to his discharge appeared to me to rest solely on the inca. pacity of the said Hugh W. Sheffey to act (that is, as judge), and so to sentence the prisoner, under the fqurteenth amendment.”
Was this a correct construction ?
In the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other liand, a construction, which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference.
Let it then be considered what consequences would spring from the literal interpretation contended for in behalf of the petitioner.
The amendment applies to all the states of the Union, to all offices
under the United States or under any state, and to all persons in the category of prohibition, and for all time present and future. The offences, for which exclusion from office is denounced, are not merely engaging in insurrection or rebellion against the United States, but the giving of aid or comfort to their enemies. They are offences not only of civil, but of foreign, war.
Now, let it be supposed that some of the persons, described in the third section, during the war with Mexico, gave aid and comfort to the enemies of their country, and, nevertheless, held some office on the 28th of July 1868, or subsequently.
Is it a reasonable construction of the amendment which will make it annul every official act of such an officer?
But, let another view be taken. It is well known that many persons, engaged in the late rebellion, have emigrated to states which adhered to the national government, and it is not to be doubted that not a few among them, as members of Congress, or officers of the United States, or as members of state legislatures, or as executive or judicial officers of a state, had before the war taken an oath to support the Constitution of the United States. In their new homes, capacity, integrity, fitness, and acceptability, may very possibly have been more looked to than antecedents. Probably some of these persons have been elected to office in the states which have received them. It is not unlikely that some of them held office on the 28th July 1868. Must all their official acts be held to be null under the inexorable exigencies of the amendment ?
But the principal intent of the amendment was, doubtless, to provide for the exclusion from office, in the lately insurgent states, of all per. sons within the prohibitive description.
Now, it is well known that before the amendment was proposed by Congress, governments acknowledging the constitutional supremacy of the national government had been organized in all these states. In some these governments had been organized through the direct action of the people, encouraged and supported by the President, as in Tennessee, Louisiana, and Arkansas, and in some through similar action in pursuance of executive proclamations, as in North Carolina, Alabama, and several other states. In Virginia such a state government had been organized as has been already stated, soon after the commencement of the war; and this government had been fully recognised by Congress, as well as by the President.
This government, indeed, and all the others, except that of Tennessee, were declared by Congress to be provisional only.
But, in all these states all offices had been filled, before the ratification of the amendment, by citizens, who, at the time of the ratification, were actively engaged in the performance of their several duties. Very many, if not a majority of these officers, had, in one or another of the capacities described in the third section, taken an oath to support the Constitution, and had afterwards engaged in the late rebellion; and most if not all of them continued in the discharge of their functions after the promulgation of the amendment, not supposing that by its operation their offices could be vacated without some action of Congress.
If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a
deed, no record of a deed, no sheriff's or commissioner's sale-in short, no official act—is of the least validity. It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.
The argument from inconveniences, great as these, against the construction contended for, is certainly one of no light weight.
But there is another principle, which, in determining the construction of this amendment, is entitled to equal consideration with that which has just been stated and illustrated. It may be stated thus : Of two constructions, either of which is warranted by the words of an amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended.
This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or discord with the other provisions of the Constitution.
And here it becomes proper to examine somewhat more particularly the character of the third section of the amendment.
The amendment itself was the first of the series of measures proposed or adopted by Congress with a view to the reorganization of state governments acknowledging the constitutional supremacy of the national government, in those states which had attempted to break up their constitutional relations with the Union, and to establish an independent confederacy.
All citizens who had, during its earlier stages, engaged in or aided the war against the United States, which resulted inevitably from this attempt, had incurred the penalties of treason under the statute of 1790.
But, by the Act of July 17th 1862, while the civil war was flagrant, the death penalty for treason, committed by engaging in rebellion, was practically abolished. Afterwards, in December 1863, full amnesty, on conditions which now certainly seem to be moderate, was offered by President Lincoln in accordance with the same Act of Congress; and after organized resistance to the United States had ceased, amnesty was again offered, in accordance with the same act, by President Johnson, in May 1865. In both these offers of amnesty extensive exceptions were made.
In June 1866, little more than a year later, the fourteenth amendment was proposed; and was ratified in July 1868. The only punitive section contained in it is the third, now under consideration. It is not improbable that one of the objects of this section was to provide for the security of the nation and of individuals by the exclusion of a class of citizens from office; but it can hardly be doubted that its main purpose was to inflict upon the leading and most influential characters who had been engaged in the rebellion, exclusion from office as a punishment for the offence.
It is true that, in the judgment of some enlightened jurists, its legal effect was to remit all other punishment. And such certainly was its practical effect, for it led to the general amnesty of December 25th, of the same year, and to the order discontinuing all prosecutions for crime, and proceedings for confiscation originating in the rebellion. But this very effect shows distinctly its punitive character.
Now it is undoubted that those provisions of the Constitution which deny to the legislature power to deprive any person of life, liberty, or property without due process of law, or to pass a bill of attainder or an ex post facto law, are inconsistent in their spirit and general purpose with a provision which, at once, without trial, deprives a whole class of persons of offices held by them, for any cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people, in the exercise of that power, seek to confirm and improve rather than to weaken and impair the general spirit of the Constitution.
If there were no other grounds than these for seeking another interpretation of the amendment than that which we are asked to put upon it, this court would feel itself bound to hold them sufficient.
But there is another and sufficient ground, and it is this, that the construction demanded in behalf of the petitioner is nugatory except for mischief.
In the language of one of the counsel, “ the object had in view by us is not to unseat Hugh W. Sheffey, and no judgment of the court can effect that."
Now the object of the amendment is to unseat every officer, whether judicial or executive, who holds civil or military office in contravention of the terms of the amendment. Surely, a construction which fails to accomplish the main purpose of the amendment and yet necessarily works the mischiefs and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the Constitution, is not to be favored, if any other reasonable construction can be found.
Is there, then, any other reasonable construction ? In the judgment of the court there is another, not only reasonable, but very clearly warranted by the terms of the amendment, and recognised by the legislation of Congress.
The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the Constitution or in an Act of Congress, that all persons included within a particular description shall not hold
For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition before any sentence of exclusion can be made to operate. To accomplish this ascertainment and insure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.
Now, the necessity of this is recognised by the amendment itself, in its fifth and final section, which declares that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
There are, indeed, other sections than the third, to the enforcement of which legislation is necessary; but there is no one which more clearly requires legislation in order to give effect to it. The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.
And the final clause of the third section itself is significant. It gives to Congress absolute control of the whole operation of the amendment.